penal command (Feuerbach, 1775-1833), and finally punishment as being something good, a moral utility, for the offender.354 Hagströmer rejects all of these ideas and argues that the only reasons that provide punishment with any jural basis are: the facts that punishment is necessitated by the danger that the illegal nature of the offender’s will poses to the legal order,355 and that the criminal offender through his actions openly demonstrates that it was the will of the offender that led him to act illegally, in breach of the commands of positive law.356 In short, the only jural basis that can validly justify the suffering that punishment inflicts is the preventive function that punishment serves, a function that is in turn justified if the offender is guilty of the offence for which he is punished.357 (NB.According to Hagströmer, the fact that an act is prohibited does not necessarily entail that it is penalized).358 Hägerström summarizes Hagströmer’s doctrine in which the following is of central importance when illustrating the jural basis to punishment in particular, and to penal law in general. Penal law and its incidental sanctions are justified by the following:359 1)The danger that the illegal nature of the criminal offender’s will poses to society (prevention); 2) The criminal offender’s duty to subject himself to that degree of punishment that is needed to eliminate the aforementioned danger (which is a duty that follows from a general principle of law - the duty of indemnification); 3) That the punishment is individually preventive; 4) The notion of guilt (which is central to Hagströmer); 5) The violation of a legal duty (which is a precondition to guilt);And finally, 6) a specification of 5, that, according to the principles of penal law, a duty must be violated in order for somebody to incur guilt, p a r t v i , c h a p t e r 6 488 354 Hagströmer, Straffrätt 1, pp. 28-33. 355 Ibid., p. 33. 356 Ibid., p. 97. 357 Ibid., pp. 33-35. 358 Ibid., p. 97.This is a commonly occurring idea among the theorists of law, for the Swedish doctrine see, e.g., Hagströmer, Straffrätt 1, p. 97; Bjerre, Om rättstridighetsrekvisitet vid förtalsförbrytelserna, p. 4; Reuterskiöld, Grunddragen, pp. 377-385. 359 Hägerström, “Naturrätt?,” pp. 325-326.
RkJQdWJsaXNoZXIy MjYyNDk=